IN RE THE MARRIAGE OF: DARIN BROCKINGTON, Petitioner and Appellee, and DEBORAH BROCKINGTON, n/k/a DEBORAH BROWN, Respondent and Appellant.
notice of appeal filed June 22, 2018, Appellant Deborah Brown
(Deborah) filed a notice of her intent to appeal a
"final judgment or order" of the Montana Eleventh
Judicial District Court, Flathead County, filed in the
underlying cause on May 22, 2018. In substance, the District
Court's judgment of May 22, 2018, is no more than a
judgment determining the amount of an award of attorney fees
and costs adjudicated under its prior findings of fact,
conclusions of law, and judgment of contempt against Deborah,
dated August 4, 2016, and filed August 5, 2016. The ancillary
proceeding to determine the amount of the previously
adjudicated contempt sanctions award followed our opinion in
the matter of In re Marriage of Brockington &
Brown, 2017 MT 92, ¶ 36, 387 Mont. 260, 400 P.3d
205, wherein we affirmed the District Court's underlying
amended parenting plan judgment and dismissed Deborah's
attempted direct appeal of the court's contempt judgment
as a premature appeal of an interlocutory order precluded by
M. R. App. P. 4(1)(a). On the contempt appeal dismissal, we
"conclude[d] that Deborah has the right to separately
appeal the order of contempt pursuant to" Kuzara v.
Kuzara, 211 Mont. 43, 48, 682 P.2d 1371, 1374 (1984)
(reversing parenting plan judgment but denying application
for writ of certiorari review of separate contempt order as a
civil cause "entirely independent" of the
underlying parenting plan judgment from which it arose), and
M. R. App. P. 6(3)(j). Brockington, ¶ 35.
Through counsel, Appellee Darin Brockington (Darin), filed a
motion to dismiss Deborah's second attempted appeal and
associated award of attorney's fees and costs. Through
counsel, Deborah objects to dismissal of her appeal and to
imposition of sanctions, asserting that her appeal is proper
pursuant to M. R. App. P. 6(3)(j).
orders are generally not subject to review on direct appeal.
Section 3-1-523(1), MCA; M. R. App. 6(1). However, as a
narrow exception to the rule, contempt judgments issued in
family law proceedings are subject to review by direct appeal
"only when the judgment or order appealed from includes
an ancillary order that affects the substantial rights of the
parties involved." Section 3-1-523(2), MCA; M. R. App.
P. 6(3)(j). This limited exception does not permit an appeal
from a "lone contempt order." Lee v. Lee,
2000 MT 67, ¶37, 299 Mont. 78, 996 P.2d 389. Having
previously determined "that Deborah has the right to
separately appeal the order of contempt pursuant to
Kuzara and M. R. App. P. 6(3)(j)," we conclude
that the District Court's judgment of contempt is subject
to review on direct appeal as filed pursuant to
Brockington, ¶ 35, and that sanctions for
filing a frivolous appeal under M. R. App. P. 19(5) are not
warranted in this case.
pending before the Court is Deborah's Motion for Relief
from District Court Order, filed through counsel on September
19, 2018. Deborah requests that her "bond on appeal be
increased as requested by Darin, and that a stay of execution
be imposed[.]" Through counsel, Darin asserts that
Deborah's motion is untimely, that the District Court
properly dissolved the stay pursuant to M. R. App. R. 24(1),
and that he is entitled to reasonable attorney's fees and
App. P. 24(1) provides that "[t]he failure of the party
filing the bond or undertaking ... to file a response to the
objection [within 20 days after the service of notice of any
objection], shall dissolve any stay preventing the execution
of the judgment or order from which the party filed the
appeal." M. R. App. P. 22(2) further provides that,
following the granting or denial of a motion for stay filed
with the district court, "a motion for relief from the
district court order may be filed in the supreme court within
11 days of the date of entry of the district court
order." M. R. App. P. 22(2)(a).
27, 2018, Darin filed his response in opposition to
Deborah's posted bond seeking to increase the amount of
the bond. Deborah failed to timely file a response to
Darin's objection as required by M. R. App. P. 24(1).
Receiving no response to Darin's objection, the District
Court issued an order on September 7, 2018,
"dissolving" the requested stay of execution of
judgment after Deborah failed to respond to Darin's
objection pursuant to M. R. App. P. 24(1).
matters, in disregard of M. R. App. P. 22(2), Deborah
untimely filed her present motion to this Court 12 days after
entry of the District Court's September 7, 2018, order.
Deborah has further neither shown any compelling
justification for her patent disregard of M. R. App. P. 24(1)
and 22(2). Deborah has thus waived her opportunities under M.
R. App. P. 24(1) and 22(2) to obtain or maintain a stay of
execution on a revised bond or undertaking and to seek relief
from this Court on the adverse District Court determination
thereon. We decline to address Darin's request for
sanctions related to Deborah's motion for relief.
IT IS ORDERED that:
1. Darin's Motion to Dismiss and for an Award of
Attorney's Fees and Costs is DENIED.
2. Deborah's Motion for Relief from District Court Order
Clerk is directed to provide a copy of this Order to ...